Secretary of Labor v. Drilling and Blasting Systems, Inc.

Plain-English summary

MSHA cited Drilling and Blasting Systems twice because a drill operator left the cab while the drill continued operating nearby. The Secretary interpreted the rule requiring drills to be attended as requiring the operator to remain within arm's reach of the controls. The Commission rejected that interpretation as plainly erroneous because experienced witnesses showed that operators must leave the cab to inspect changing ground conditions, leaks, noises, and other safety concerns. It held that an operator may attend the drill while remaining in the drilling area and monitoring its operation, and substantial evidence showed that occurred here. Both citations and the proposed $1,080 in penalties were vacated.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.7012
• Outcome: Two drill-attendance citations and proposed penalties totaling $1,080 were vacated.
• Key point: Attending an operating drill does not require staying at its controls when nearby observation outside the cab is necessary for safe monitoring and the operator remains able to respond.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C. 20004-1710

SECRETARY OF LABOR,                             :

MINE SAFETY AND HEALTH                    :

ADMINISTRATION (MSHA)                       :       

:                   Docket No. SE 2012-510-M        

v.                                              
 :

:

DRILLING AND BLASTING                        :

SYSTEMS, INC.                                            
 :

Before: Jordan, Chairman; Young, Cohen,
Nakamura, and Althen, Commissioners

DECISION

BY THE COMMISSION:

This proceeding
arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seq. (2012) (“Mine Act” or “Act”). At issue are two citations the Department of
Labor’s Mine Safety and Health Administration (“MSHA”) issued on consecutive
days to Drilling and Blasting Systems, Inc. (“D&B”), alleging that the contractor
violated 30 C.F.R. § 56.7012.

The regulation,
which states that “[w]hile in operation, drills shall be attended at all times,”
is interpreted by the Secretary of Labor to require that a miner remain at the
controls of an operating drill at all times, which was not the case in either of
the cited instances here. The Administrative Law Judge refused to apply the
Secretary’s interpretation, found that he had failed to meet his burden of proving
violations, and vacated both citations. 35 FMSHRC 1453 (May 2013) (ALJ).

The Commission
granted the Secretary’s petition for discretionary review. For the following
reasons, we affirm in result the Judge’s decision vacating the citations.

I.

Factual
and Procedural Background

A.        D&B
Drilling Procedures at Issue

In its contract operations, D&B uses 22 drills, primarily
throughout North Carolina, South Carolina, and Georgia. In March 2012, it was
drilling blast holes at Lucky Stone Corporation’s crushed and broken granite
quarry in Pittsboro, North Carolina.

At the Lucky Stone Quarry, D&B was using an Ingersoll
Rand DM30 drill, which is relatively large, is hydraulically operated, and
trams on tracks similar to a bulldozer. The steel used in the drilling is
contained in a mast structure, 30 to 40 feet in length, located in front of the
cab. The controls to the drill are located in an enclosed cab at the rear of
the drill. Gov’t Ex. 4, at 2 (photograph of drill).

Prior to starting the drill each day, the D&B drill
operator, who usually worked alone, would conduct a preshift examination of the
drill, particularly the drill steel and safety switches. After starting to
drill a hole, a D&B drill operator would not remain in the drill’s cab the
entire time. The operator had other assigned responsibilities that he could not
accomplish from inside the cab of the drill. Those duties included checking the
surrounding ground conditions, which can change rapidly and destabilize a
drill, possibly to such an extent that the drill could go over the mine’s high
wall. The drill operator would also check the drill’s engine and compressor for
leaks and other malfunctions.

B.        The Two Citations

MSHA Inspector
Cecil Worrell was conducting a regular inspection of the Lucky Stone Quarry on the
evening of March 14, 2012, when he observed the D&B drill operator outside
of the drill cab while the drill was in operation. At the time, the operator
was walking towards the drill from a distance of approximately 18 feet. Worrell
issued the first citation, No. 8720235, alleging that the drill was not being “attended”
in violation of section 56.7012. The citation states that “[a] miner may suffer
fatal injuries in the event the steel and/or bit becomes hung in the hole
causing the steel to fragment under pressure.” Because of language barriers
with the drill operator, Inspector Worrell spoke by telephone with the drill
operator’s foreman to have the foreman instruct the operator that he had to
always remain inside the cab of the drill, so as to be within arm’s reach of
the controls in the event of such an occurrence. Gov’t Ex. 1.

Nevertheless,
when Worrell continued his inspection of the quarry the next morning, he again
observed the drill operator outside the cab of the drill while it was
operating. This time the operator was sitting in the cab of a pickup truck that
was parked approximately 20 feet from the drill facing away, before he left the
truck and returned to the drill. Consequently, Worrell issued another citation,
No. 8720237, almost identical to the one he issued the previous day. Gov’t  Ex.
3, at 1, Gov’t Ex. 4 (pictures of truck and drill).

MSHA later
proposed total penalties of $1,080 for the two citations. D&B contested the
assessment and the underlying citations on the ground that its operator was
“attending” the drill from outside of the cab within the meaning of that term
as it used in section 56.7012.

At the
subsequent hearing, Inspector Worrell explained that he understood the purpose
of section 56.7012 is “[t]o prevent accidents and situations from occurring.” Tr.

31. He stated that he had never operated a drill, and was aware of no reason
    why a drill operator would need to leave the cab. He maintained that while MSHA
    had issued no written guidance interpreting “attended” with respect to a drill
    to mean within arms-reach of its controls, he recalled an MSHA Mine Academy
    instructor stating as much at a training class in 2008 or 2009.

The drill here
had an automatic sensor to shut the drill down when it was under duress (Tr. 176-78,
210), and Worrell acknowledged that if drill steel gets hung up in a hole, the
drill is supposed to stop. His concern, however, was that if the drill did not
automatically shut down, the drill steel could fragment under pressure,
explode, and spray steel shrapnel that could prove fatal should it strike any
miner in the vicinity of the drill. He discussed having viewed the aftermath of
such a fragmenting incident where he was previously employed, at Ararat Rock Products
in Mt. Airy, NC. There, according to Worrell, the drill operator had left the
drill running while he left to use a portable restroom 300 yards away, across
the pit (and thus was safely out of the range of the resulting shrapnel).

Worrell stated
that a warning that fragmenting was occurring would “probably” be produced by
the steel slowing down and then stopping, which would signal the miner at the
drill’s controls to immediately shut the drill down. Tr. 51, 67. He estimated
that it would have taken “several seconds” for the drill operator here, when he
was 18 feet away from the drill, to get to the controls and shut the drill down
in such an event. Tr. 33.

Four
witnesses testified for D&B – Foreman Solin Hernandez (drill operator for 8
years), Operations Director and Safety Manger, Kirt Murray (16 years’
experience; drill operator and trainer), Brent Taylor (owner of D&B and
drill operator from age 15), and Paul Earl, Jr. (expert witness on mechanical
engineering and drilling). These witnesses testified, inter alia, that   
(1) drills are stable when in operation and are not designed for the operator
to stay in the cab during operation; (2) they had never seen or heard of any
fragmenting event as described by Inspector Worrell; (3) if a bit fragmented it
would be contained underground; (4) MSHA had regularly inspected D&B’s
drilling operations for years and never applied Inspector Worrell’s
interpretation; (5) under “Best Practices,” drillers are instructed to monitor
ground conditions constantly; (6) Inspector Worrell’s interpretation of the
standard previously had been rejected by an MSHA Field Office Supervisor; (7) it is necessary for the drill operator to check
and perform maintenance and carefully observe ground conditions while the drill
is operating; and as a result, (8) the Inspector’s interpretation would create significant
hazards for drilling operations.

C.        Judge’s
Decision

The Judge concluded
that the term “attended,” as used in section 56.7012 was
ambiguous on its face, as “[e]ither of the interpretations proposed [by the
parties] could be envisioned.”   35 FMSHRC at 1460. She also found that the
definition of “attended” in 30 C.F.R. § 56.2 (the definition section for Part
50) was ambiguous and dependent upon circumstances.[1] Nonetheless,
she declined to defer to the Secretary’s interpretation that the term requires
that a drill operator remain within arms-length of the drill controls, holding
that the Secretary’s interpretation was erroneous in two respects and thus not
worthy of deference. First, the Judge found the Secretary’s interpretation to
be erroneous because in 2010, after an MSHA inspector had cited D&B for a
violation of section 56.7012 at another mine, the inspector’s supervisor
vacated the citation after speaking with D&B’s owner, who persuaded him
that the contractor’s practice of having its operators leave the controls of
drills was permissible under the regulation. Id. Second, the Judge found that the Secretary’s
interpretation was erroneous because it would lead to “extraordinarily
dangerous results.” Id. Considering the testimony provided by D&B’s
representatives and weighing it against Worrell’s, the Judge concluded that a
drill operator would be better able to attend to critical safety matters, such
as ground control, and to every aspect of the performance of the drill, from
outside the cab of the drill than from within. Id. at 1460-61.

The Judge
instead adopted D&B’s interpretation of “attended” as permitting a drill
operator to be anywhere within the blasting area where holes are being drilled.
The Judge held that the Secretary had failed to carry his burden of proof, vacated
both citations, and dismissed the case. Id.

II.

Disposition

The Secretary contends
the Judge erred when she failed to accept the Secretary’s interpretation of section
56.7012 as requiring the drill operator to be within immediate reach of the
drill’s controls while the drill is in operation. According to the Secretary,
this is his authoritative interpretation of the standard, and thus due
deference, regardless of any earlier interpretation that may have been used by
an MSHA field supervisor. The Secretary maintains that the Judge also erred in
concluding that the Secretary’s interpretation would lead to dangerous results,
in that any safety and operational issues that can only be addressed away from
the drill’s controls need not be the responsibility of the drill operator, but
instead can be accomplished by a second miner assigned to the drill. The
Secretary submits that his interpretation of “attended” in the regulation is
consistent with accepted definitions of the term, while the interpretation
applied by the Judge is not. Finally, the Secretary asserts that even if the
Judge did not err in failing to defer to the Secretary’s interpretation, she incorrectly
concluded that the Secretary did not meet the burden of proof for the
second citation, given that the Judge did not address evidence that the drill
operator was sitting in a truck that was parked facing away from the drill.

D&B responds
that the Judge correctly ruled that the Secretary’s interpretation was
erroneous and therefore not entitled to deference, in that it was inconsistent
with the language of the standard. D&B also contends that there is
sufficient evidence in the record to support the Judge’s ruling that the drill
operator was attending the drill at the time of the second citation.

The Commission
permitted the filing of an amicus brief by the National Stone, Sand and Gravel
Association (“NSSGA”), a trade association for the crushed stone, sand, and
gravel industry. NSSGA submitted a brief supporting the Judge’s determination
that the Secretary’s interpretation of “attended” was plainly erroneous and not
entitled to deference. It argues that to defer to the Secretary’s
interpretation would necessitate sweeping changes in the drilling industry that
would be financially detrimental and extraordinarily dangerous.

A.        The
Secretary’s Interpretation that “Attending” a Drill Requires Drill Operators to
Remain Within Arms-Reach of Drill Controls Is Plainly Erroneous.

We agree with
the Judge and the parties that the term “attended” as it appears in section
56.7012 and section 56.2 is ambiguous with respect to the issue presented here.
The standard requires that “[w]hile in operation, drills shall be attended to
at all times.” But the regulation is silent with regard to where the drill
operator must be located to be considered to be “attend[ing]” an operating
drill.

Section 56.2
defines “attended.” As stated earlier, it provides that “[a]ttended means
presence of an individual or continuous monitoring to prevent unauthorized
entry or access.”
Notably, however, the requirement in section 56.7012 that drills be “attended”
was in section 56.7012 long before section 56.2 included a definition of
“attended.”

In 2004, MSHA
moved numerous definitions previously appearing in six separate subparts of
Part 56 to section 56.2, to make them applicable to Part 56 in its entirety as
long as they were consistent with definitions set forth in specific subparts. The
revision moved “attended” and nine other definitions without change from Subpart
E - Explosives to section 56.2. 69 Fed. Reg. 38,837, 38,838 (June 29, 2004). The
definition of attended in section 56.2, therefore, originated as specifically applicable
only to Subpart E of Part 56, “Explosives,”[2]
and does not consider or address where an operator must be located in relation
to a drill in order to be “present” while it is in operation. Therefore, the
issue before us is whether we agree with or must defer to the Secretary’s
interpretation that the regulation requires that an operator maintain a stationary
presence in the cab of the drill when it is operating.

Ordinarily,
we must defer to the agency’s interpretation of its own ambiguous regulation. See
Auer v. Robbins, 519 U.S. 452 (1997). However, deference is inappropriate
if the agency’s interpretation is not reasonable or when it is “plainly
erroneous or inconsistent with the regulation” (id. at 461), or “when
there is reason to suspect that the interpretation does not reflect the
agency’s fair and considered judgment on the matter.” Christopher v.
SmithKline Beecham Corp. __ U.S. , , 132 S. Ct. 2156, 2166 (2012) (internal
quotations omitted) (citing Auer, 519 U.S at 462). Here, for the reasons
set forth below, we find the Secretary’s interpretation is plainly erroneous.

The Secretary, relying on the testimony of Inspector
Worrell, argues that mine safety is furthered when the drill operator has
constant “control” over the drill, which the Secretary contends can only be
accomplished by having the drill operator physically at the controls in the cab
of the drill. According to the Secretary, the drill operator should remain there
in order to be able to immediately shut down the drill in the event of an
emergency. PDR at 7 & n.3.[3]

The evidentiary record in this case, however, is replete
with testimony, credited by the Judge, that a drill operator must accomplish a
number of other safety-related tasks away from and outside of the cab of the
drill. Foreman Hernandez testified that it is only from outside of the cab of
the drill that ground conditions can be completely observed, and those ground
conditions can change rapidly due to drilling and weather, affecting the
drill’s jacks and ultimately leading to a loss of drill stability. Tr. 110-11, 113-14,
144-45. Clearly this is information the drill operator needs to be aware of in
order to head off emergency situations.

The Judge also credited Safety Manager Murray’s testimony
that a drill operator can best learn of and respond to problems arising with
the drill, such as its oil and hydraulic lines leaking and those involving its
compressor, by examining the drill from outside of the cab. 35 FMSHRC at 1456,
1460; Tr. 180-81. Murray also testified that leaving the drill cab permits the
drill operator to hear any unusual noises from the belts and pumps that might
indicate a potential problem. Tr. 174-75. In addition, the Judge credited Brent
Taylor, D&B’s long-time owner and chief executive officer, who testified
that it is industry practice for drill operators in this country to remain
outside of the cab of the drill much of the time the drill is in operation. 35
FMSHRC   at 1458, 1460, Tr. 254-55.

In stark contrast, the Judge entirely refused to credit
Inspector Worrell on the subject of safe drilling practices, taking into
account Worrell’s lack of experience in drilling. 35 FMSHRC at 1455 n.2, 1458, 1460
(citing Tr. 14, 32, 34). The Commission has recognized that a Judge’s
credibility determinations are entitled to great weight and may not be
overturned lightly. Farmer v. Island Creek Coal Co., 14 FMSHRC 1537,
1541 (Sept. 1992); Penn Allegh Coal Co., 3 FMSHRC 2767, 2770 (Dec.
1981).

We see no reason
to disturb the Judge’s credibility determinations here. Whereas, as noted by
the Judge, D&B’s witnesses all had many years of experience in drilling
operations or the physics of drilling (35 FMSHRC at 1460), Worrell stated that
he had never operated a drill and had passed on the opportunity to do so. Tr.

45. Even more importantly, Worrell testified that he was not aware of any
    reason a drill operator would need to leave the controls of the drill. Tr. 31. As
    explained at the hearing, however, there are a number of reasons why a drill
    operator would need to leave the cab to ensure a drill’s safe operation. See
    35 FMSHRC at 1455-59.[4]

According to the citations, and expounded upon at some
length by Inspector Worrell in his testimony, the drill operator needs to be
able to instantaneously respond in the event drill steel begins to fragment. The
Secretary contends that his interpretation of the regulation as contained in
the inspector’s citations and testimony in the hearing below, and as litigated
by the Secretary in this case, is due deference as a reasonable interpretation.
The Judge, however, entirely refused to credit Inspector Worrell regarding the prospect
of drill steel fragmenting.   35 FMSHRC at 1455 n.2, 1460. We again see
no error, given the inspector’s lack of background in drilling.

The Judge specifically
refused to give weight to Worrell’s claim to have witnessed the aftermath of a
drill fragmenting and the pieces exploding outward at the Ararat Rock mine, and
we see no reason to disturb that finding either. The Judge concluded that
Worrell was being evasive regarding the extent to which he was familiar with
the details of the incident. Id. at 1455 n.2, 1460. Because the Judge
“has an opportunity to hear the testimony and view the witnesses[,] he [or she]
is ordinarily in the best position to make a credibility determination.”  In
re: Contests of Respirable Dust Sample Alteration Citations, 17 FMSHRC
1819, 1878 (Nov. 1995) (quoting Ona Corp. v. NLRB, 729 F.2d 713, 719
(11th Cir. 1984)), aff’d sub nom. Sec’y of Labor v. Keystone Coal Mining
Corp., 151 F.3d 1096 (D.C. Cir. 1998).

A review of even
the few details of the incident on which Worrell was clear further supports the
Judge’s decision to refuse to give weight to Worrell’s testimony regarding the Ararat
Rock incident. Worrell described the drill steel there as “worn pretty bad.” Tr.

63. In contrast, he stated that the D&B “drill and the steel were both in
    good condition,” that he “had no issue with the integrity of the drill or the
    steel,” and thus an incident such as the one described having occurred at
    Ararat Rock was unlikely to occur. Tr. 39.[5]

The Secretary
attempted to justify Worrell’s concern about the prospect of fragmenting steel
by having him discuss an MSHA Fatalgram about an accident involving drill
steel. Tr. 35-38; Gov’t Ex. 7. The Judge rightly discounted the Fatalgram
because it was based on a miner suffering fatal injuries while working to
change drill steel. 35 FMSHRC at 1460. There is no evidence here that D&B ever
intended to change the drill steel while the drill was operating without
someone at the controls of the drill.[6]

In addition to
refusing to credit any part of Worrell’s account that drill steel can fragment,
the Judge credited the contrary testimony of each of D&B’s four witnesses,
none of whom had ever heard of drill steel fragmenting as the result of the
steel getting hung up in the ground as Worrell described. 35 FMSHRC at 1460;
Tr. 120, 197, 258. One of those was D&B’s expert witness in mechanical
engineering and drilling, Paul Earl, Jr., who testified that never in his 50
years in the industry had he heard of drill steel fragmenting, and that the
citations written by Worrell were based on a “completely erroneous” theory. Tr.
239, 248.

The Judge was justified in crediting the testimony of the
operator’s witnesses experienced with drilling activities, and the testimony of
the operator’s expert witness, as against the testimony of one inspector who
had neither training nor experience with drilling operations.  The Judge relied
on testimony regarding the safety advantages of not requiring fixed stationing
in the cab, the absence of any history of the type of incident described by the
inspector, the lack of any enforcement history, and the different positions
taken by MSHA in prior matters.[7]
When we put those factors together with the fact that the Secretary’s interpretation,
based on the opinion of a single, inexperienced inspector, is not the most
natural reading of the safety standard, there plainly is no basis for
deference.

In light of the
foregoing, based on the record in this case we decline to defer to the Secretary’s
interpretation that “attended” in section 56.7012 means that a miner must be constantly
at the controls of an operating drill. Such a reading is contrary to credited,
competent testimony that exiting a cab advances safety, and that it is common
practice within the industry for drill operators to do so. This leads us to conclude
that this is an instance in which the agency’s interpretation of that standard,
as supported by the evidence it presented at the hearing, is plainly erroneous.

B.        Substantial
Evidence Supports the Judge’s Determination that the Drill Operator was
Attending the Drill.

In concluding that
the Secretary’s interpretation of the standard is unreasonable, we agree with
the Judge that the “operator’s interpretation of ‘attended’ [is] logical” (35
FMSHRC at 1461), and accordingly, we adopt it for purposes of this case. See
Twentymile Coal Co., 36 FMSHRC 2009, 2013 (Aug. 2014) (rejecting the
Secretary’s interpretation of an insulation standard as unreasonable and
adopting the operator’s interpretation). The operator defines “attended” here
as “being within the area where the drilling is being done so that the drill
operator can monitor the area for changing ground conditions destabilizing the
drill jacks, malfunctioning of the pressured hoses, overheating, leaking, or
other complications.” 35 FMSHRC at 1459.

Applying this
standard to the facts presented here, the Judge concluded:

The Secretary has
presented no evidence that the driller was not attending to his drill on either
occasion cited here within the meaning of the standard as I have found. In the
first instance the evidence is solely that he was 18 feet away from the drill
walking towards it. There is nothing that can be gleaned from that information
indicating he was not observing the positioning of the drill or monitoring the
ground conditions. Likewise, there was an adequate explanation provided by the
Respondent as to why he would be in the pickup truck located within the
blasting zone during drilling operations. By contrast the Secretary offered no
evidence that he was not doing so.

Id. at 1461.

Substantial evidence[8] supports
the Judge’s conclusion that the drill was attended on March 15.[9] The
Secretary did not meet his burden of showing that the operator failed to attend
the drill (under the interpretation of “attend” that we adopt herein).[10]

Applying this
interpretation, record evidence reflects that it would only have taken the
drill operator a few seconds to get from the pickup truck (parked 20 feet away)
to the cab of the drill, in case of an emergency. Tr. 33 (when drill operator
stood 18 feet from the drill, in the event of an emergency it would take
several seconds for him to get to the controls of the drill). In addition, one
of the operator’s witnesses, Murray (who had worked as a drill operator,
director of operations, and safety manager), testified that the driller
operator might have been sitting in the pickup truck to fill out the drill log,
which must be completed for every hole drilled (Tr. 195, 214-15), or that he
might have been getting ready to put water in the drill (which is why the truck
was backed up to the drill). Tr. 143, 149-50 (testimony of supervisor that the
drill operator was pumping water from his truck to the drill in order to reduce
the dust), 215.

Accordingly, we affirm in result the Judge’s conclusion that the Secretary did not meet his burden of proof that the operator violated section 56.7012 on March 15, 2012.

III.

Conclusion

For the
foregoing reasons, we affirm the Judge’s decision to vacate Citation Nos.
8720235 and 8720237.

/s/
Mary Lu Jordan

Mary
Lu Jordan, Chairman

/s/
Michael G. Young

Michael
G. Young, Commissioner

/s/
Robert F. Cohen, Jr.

Robert
F. Cohen, Jr., Commissioner

/s/
Patrick K. Nakamura

Patrick
K. Nakamura, Commissioner

/s/
William I. Althen

William
I. Althen, Commissioner

[1] 30 C.F.R. § 56.2 defines “attended” to mean the
“presence of an individual or continuous monitoring to prevent unauthorized
entry or access.”

[2] Thus, the portion of section 56.2 allowing attendance
through “continuous monitoring” appears to have specific applicability to
standards involving the storage of explosives (for which it was originally
intended) and to be essentially irrelevant to this case. See, e.g., 30
C.F.R.     § 56.6133(a)(3) (powder chests must be “[l]ocked or attended when
containing explosive material”); 30 C.F.R § 56.6202(a)(7) (“[v]ehicles
containing explosive material” must be “[a]ttended or the cargo compartment
locked, except when parked at the blast site and loading is in progress”).

[3]
The Secretary also argues that, “[t]o prevent unauthorized entry of or access
to the drill, a person must be within immediate reach of the cabin of the
drill.” S. Reply Br. at 6. The Secretary points to no evidence in the record to
support this assertion. On the other hand, D&B witnesses consistently
testified that a drill operator would have a better view of the area
immediately around the drill from outside of its cab than from within the cab
at the controls.   Tr. 105, 123, 162, 209. Further, the Secretary contends that
the evidence of the drill operator being in the cab of the truck parked facing
away from the drill demonstrates that the Judge erred in concluding that the operator
was “attending” the drill. PDR at 11-12. Inspector Worrell, however, could not
state how long the operator was facing away from the drill, and the drill
operator departed the truck and walked towards the drill upon Worrell’s
arrival. Tr. 80-82. Without evidence of how long the drill operator turned away
from the operating drill, it is impossible to determine whether that would
contradict the evidence establishing that the operator was otherwise present at
the drill to prevent unauthorized access to it.

[4] The Secretary’s fallback position is that
mines and drilling companies can assign a second miner to the tasks outside of
the cab, in order that the operator can remain at the controls in the event of
an emergency. PDR at 8. As we explain herein though, the Secretary failed to
put on sufficient evidence to demonstrate why this is necessary. Moreover,
NSSGA contends that if this were required, “mine operators and contractors
would be forced to change decades of previously accepted safety, management,
and personnel practices.” NSSGA Br. at 17-18.

[5] In addition, Worrell explained that the miner at
Ararat Rock had left the drill running while he went some 900 feet away. Tr.

89. D&B’s Hernandez testified that if a D&B drill operator had to
    travel 100 feet or more from the drill, he would shut the drill down. Tr.
    153-54.

[6]
Nevertheless, at the hearing the Secretary
argued that the accident was relevant because it shows the general need for a
miner to be at the drill controls to stop the drill in the event of an
emergency. The Fatalgram itself, however, does not go that far. It states only
that while drill steel is being changed, mine operators should ensure that
drill controls are in “easily accessible locations.” Gov’t Ex. 7.

[7] MSHA’s position as to this regulation has not been
consistent. As the Judge noted, in 2010 an inspector issued a citation at
another D&B quarry within the same MSHA region based on D&B’s practice
of having the drill operator outside the cab when the drill was in operation. After
D&B discussed its practice with the Field Office Supervisor, MSHA vacated
the citation, finding that D&B was not in violation of the standard. 35
FMSHRC at 1457, 1460.

[8] When reviewing an administrative law judge’s factual
determinations, the Commission is bound by the terms of the Mine Act to apply
the substantial evidence test. 30 U.S.C.

§ 823(d)(2)(A)(ii)(I). “Substantial
evidence” means “‘such relevant evidence as a reasonable mind might accept as
adequate to support [the judge’s] conclusion.’” Rochester & Pittsburgh
Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison
Co. v. NLRB, 305 U.S. 197, 229 (1938)).

[9] Because the Secretary did not include an appeal of
the Judge’s evidentiary finding regarding the first citation issued on March
14, we do not address that issue.

[10] This is
somewhat understandable, given that the focus of the Secretary’s case had been
his insistence that to “attend” the drill, the drill operator must
remain in reach of the drill’s controls. Thus the inspector merely testified that the drill
operator would not have been able to shut down the drill from the nearby pickup
truck. Tr. 71-72.